The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Already, there have been political noises that the Lords had best not take a stand against the Bill if it values its future! The actual stance to be taken in the Lords remains to be seen but it can be noted that, by the so-called Salisbury Convention, the Lords will not vote down a Bill that seeks to enact a manifesto
pledge on which a government was elected.

"The EU is too bureaucratic and too undemocratic. It interferes too much in our daily lives, and the scale of migration triggered by new members joining in recent years has had a real impact on local communities. We are clear about what we want from Europe. We say: yes to the Single Market. Yes to turbo-charging free trade. Yes to working together where we are stronger together than alone. Yes to a family of nation states, all part of a European Union – but whose interests, crucially, are guaranteed whether inside the Euro or out. No to ‘ever closer union.’ No to a constant flow of power to Brussels. No to unnecessary interference. And no, of course, to the Euro, to participation in Eurozone bail-outs or notions like a European Army.It will be a fundamental principle of a future Conservative Government that membership of the European Union depends on the consent of the British people – and in recent years that consent has worn wafer-thin. That’s why, after the election, we will negotiate a new settlement for Britain in Europe, and then ask the British people whether they want to stay in the EU on this reformed basis or leave. David Cameron has committed that he will only lead a government that offers an in-out referendum. We will hold that in-out referendum before the end of 2017 and respect the outcome."

Interpretation of such documents is best left to political commentators but the phrases "yes to the Single Market" and "respect the outcome" are clear enough.

The electorate in Northern Ireland wished to remain in the EU but, despite strong arguments, the Supreme Court ruled that the Northern Ireland Act 1998 did not require EU membership even though EU membership (and Human Rights) are deeply written into the Peace Settlement. The Northern Ireland Act 1998 section 1 contains provision for a referendum about whether Northern Ireland remains in the UK if there is a desire to unify with the Republic of Ireland. (Note the binding nature of such a referendum). Whether things will proceed on that course remains to be seen but it is clear enough that there is no desire to have a hard EU/UK border across Ireland.

Keen observers of the constitution will note the role being played by conventions.

The Brexit litigation placed the Sewel Convention in the limelight. The Supreme Court recently held that the Convention was a political constraint on the activity of the UK Parliament but the policing of its scope and operation was not within the constitutional remit of the courts. The devolved institutions did not have a veto over the decision to withdraw from the EU.

However, as the Notification of Withdrawal Bill proceeds to the Lords, one can expect the government to have been converted to the full meaning of the Salisbury Convention and, of course, the Lords are now faced not only with the manifesto but also with the referendum result which, in its simplest form, was a vote for the UK to leave the EU. Of course, it was also a vote by the people of Scotland and Northern Ireland to remain in the EU.

In Session 2005-6, a Joint Committee on Conventions said that the Salisbury Convention had evolved to a point where in the House of Lords -

A manifesto Bill is accorded a Second Reading;

A manifesto Bill is not subject to 'wrecking amendments' which change the
Government's manifesto intention as proposed in the Bill; and

A manifesto Bill is passed and sent (or returned) to the House of
Commons, so that they have the opportunity, in reasonable time, to consider the
Bill or any amendments the Lords may wish to propose.

The Committee also wished to rename the Convention as the Government Bill Convention.

Whatever one's view of the Convention, it clearly does not prevent the Lords from bringing forward amendments to the Bill with a view to shaping the outcome.

As discussed in this previous post, my central criticism of the Bill continues in that it deals with Notification only and not with the actual decision to leave the EU. It ought to be put beyond any argument that Parliament has made the decision to leave the EU. Given the potentially massive consequences for the UK, nothing less ought to be accepted.